Ontario Superior Court upholds Constitutionality of Citizenship Oath Requirement

On September 20, 2013, Justice Edward Morgan of the Ontario Superior Court of Justice (the “ONSC“) released his decision in McAteer et al v. Attorney General of Canada, 2013 ONSC 5895 (“McAteer“).  McAteer involved a constitutional challenge to the citizenship oath requirement on the grounds that the requirement violates the constitutional protections of freedom of expression, freedom of religion, and equality that are  found in The Canadian Charter of Rights and Freedoms (the “Charter“).  Ultimately, while the ONSC determined that the citizenship oath requirement does indeed violate s. 2(b) of the Charter‘s right to freedom of expression, the ONSC ultimately found that the breach was justified under the reasonable limits test under s. 1.  The ONSC also held that the citizenship oath requirement does not breach either s. 2(a) or 15 of the Charter, which protect freedom of religion and equality.

In reaching its decision, the ONSC interpreted the citizenship oath’s references to the queen in a very different way than I think most people do.  It is this interpretation that is going to be the subject of this blog post, as I think the McAteer decision can provide some meaning and significance to potential oath takers.  (For those interested in reading a summary of how Justice Morgan analysed the Charter challenges, including his application of the Oakes test, I suggest you read this wonderfuly concise 12 paragraph summary.)

The Citizenship Oath

Section 3(1)(c) of the Citizenship Act, RSC 195, c C-29 (the “Citizenship Act“), provides that:

Subject to this Act, a person is a citizen if the person has been granted or acquired citizenship pursuant to section 5 or 11 and, in the case of a person who is fourteen years of age or over on the day that he is granted citizenship, he has taken the oath of citizenship

Section 12(3) of the Citizenship Act goes on to provide that a citizenship certificate does not become effective until a permanent resident takes the oath.  In 2011, the Government of Canada also made it a requirement that citizenship judges be able to see the faces (specifically the lips) of people taking the oath.

The citizenship oath is:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors

In my experience, most people who are about to take the citizenship oath do so with great excitement at the prospect of finally becoming Canadian citizens.  However, they are unsure what to make of the oath’s references to Her Majesty Queen Elizabeth.  While the appellants in McAteer may have been uniquely outraged by the requirement to pledge loyalty to the queen, most find the requirement simply bemusing.  (One client even jokingly commented that he would bow to Kate Middleton any day.)

To paraphrase Justice Morgan, however, our “problem” might be that we are taking the oath literally.  As Justice Morgan noted, however, a purposive interpretation of the citizenship oath shows that the references to the queen are not literally to an elderly lady with a unique wave, but are  rather refer to loyalty to Canada’s constitutional monarchy / democracy.  As Justice Morgan noted:

Her Majesty the Queen in Right of Canada (or Her Majesty the Queen in Right of Ontario or the other provinces), as a governing institution, has long been distinguished from Elizabeth R. and her predecessors as individual people. Thus, for example, Canada has divided sovereignty, with both the federal and provincial Crowns represented by the Her Majesty.

Justice Morgan also noted that the Crown (as symbolized by Her Majesty Queen Elizabeth) sits at the sovereign apex of Canada’s legal and political system.  In our system of constitutional monarchy, the sovereign, like all institutions of state, exercises power within constitutional limitations.  However, there is no doubt that Her Majesty the Queen is Queen of Canada, the embodiment of the Crown in Canada, and the head of state.

Hence, on whether or not people are being forced to pledge loyalty to a foreign lady of privilege, Justice Morgan stated:

Not only is the Canadian sovereign not foreign, as alleged by the Applicants in identifying the Queen’s British origin, but the sovereign has come to represent the antithesis of status privilege.

Accordingly, when one is pledging loyalty to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, one is not literally pledging loyalty to the woman who appears on our currency.  Rather, to paraphrase Justice Morgan, oath takers are pledging loyalty to Canada’s domestic institutions that represent egalitarian governance and the rule of law.

A Summary on Freedom of Expression

In its Charter s. 2(b) analysis, the ONSC broadly summarized Supreme Court of Canada jurisprudence on freedom of expression.  I found it to be a helpful summary of how “freedom of speech” in Canada works, and have reproduced it below (removing case citations).

As the Supreme Court of Canada pointed out in one of its earliest judgments under section 2(b) of the Charter, “[t]he content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts.” Certain behaviours such as a labour strike, acts of criminal violence, and the display of commercial wares have been specifically excluded from the ambit of the constitutional right; otherwise, “s. 2(b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed.”

Accordingly, “if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee”. Protected speech therefore includes not only the spoken word but the choice of language, and the right to receive or hear expressive content as much as the right to create it. Section 2(b) also guarantees the right to possess expressive material regardless of how repugnant it may be to others or to society at large.

Most significantly, “[f]reedom of expression encompasses the right not to express views.” As explained by Lamer J. (as he then was) in Slaight Communications Inc. v Davidson, “[t]here is no denying that freedom of expression necessarily entails the right to say nothing or the right not to say certain things. Silence is in itself a form of expression which in some circumstances can express something more clearly than words could do.” A statutory requirement whose effect is “to put a particular message into the mouth of the plaintiff” would run afoul of section 2(b) of the Charter

Indeed, the right not to express the government’s preferred point of view extends to those who oppose socially positive messages such as health warnings, and includes even the right to refrain from expressing objective, uncontested facts.  As Chief Justice Lamer explained in Committee for the Commonwealth of Canada v Canada, individuals are not only protected from having to articulate a message with which they disagree, but are also guaranteed the correlative right not to have to listen to such a message.

Sample Citizenship Exam Questions (Updated May 16, 2013)

The Citizenship Exam consists of 20 multiple choice questions. 

Some sample questions are:

A) What are three responsibilities of citizenship?

  1. Being loyal to Canada, recycling newspapers, serving in the navy, army or air force?
  2. Obeying the law, taking responsibility for oneself and one’s family, serving on a jury.
  3. Learning both official languages, voting in elections, belonging to a union.
  4. Buying Canadian products, owning your own business, using less water.

B) What is the meaning of the Remembrance Day poppy?

  1. To remember our Sovereign, Queen Elizabeth II.
  2. To celebrate Confederation.
  3. To honour prime ministers who have died.
  4. To remember the sacrifice of Canadians who have served or died in wars up to the present day.

C) How are Members of Parliament chosen?

  1. They are appointed by the United Nations.
  2. They are chosen by the provincial premiers.
  3. They are elected by voters in their local constituency (riding).
  4. They are elected by landowners and police chiefs.

D) How does a bill become a law?

  1. The Lieutenant Governor must approve the bill.
  2. Approval by a majority in the House of Commons and Senate and finally the Governor General.
  3. The Queen must sign the bill.
  4. Approval by the Members of the Legislative Assembly.

E) What was the Women’s Suffrage Movement?

  1. The effort by women to achieve the right to vote.
  2. The effort by women to participate in military service.
  3. An unsuccessful movement to get husbands to do housework.
  4. The effort by women to be in Parliament.

The pass rate for the citizenship exam has fluctuated dramatically in the last several years.  Prior to the introduction of the new exam based on the Discover Canada manual, it was around 96%.  Immediately after the introduction of Discover Canada it plunged to around 70%.  Several difficult questions were pulled, and the pass rate currently sits at around 83%.  Statistics show that there is not a great variation in the pass rate based on age, however, education level is a strong indicator.  Counter-intuitively, the longer someone has been a permanent resident at the time they write the test the less likely it is that the person will pass.

Applicants who fail the written test are referred to a hearing with a citizenship judge.


Limitations on Citizenship by Descent

There are two ways that a person can be born a Canadian citizen. The first is if a person is born in Canada. The second is if a person is born to a Canadian parent, also known as citizenship by descent.  However, it is important for Canadians abroad to note that as of 2009, citizenship by descent is effectively limited to one generation born outside Canada.

The Legislation

Section 3(3)(a) of the Citizenship Act (the “Act“) provides that:

(3) Subsection (1) does not apply to a person born outside Canada

(a) if, at the time of his or her birth or adoption, only one of the person’s parents is a citizen and that parent is a citizen under paragraph (1)(b), (c.1), (e), (g) or (h), or both of the person’s parents are citizens under any of those paragraphs;

Subsection 3(1)(b) of the Act provides that:

3. (1) Subject to this Act, a person is a citizen if

(b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen;

Subsection 3(1)(c.1) provides that:

3. (1) Subject to this Act, a person is a citizen if

(c.1) the person has been granted citizenship under section 5.1 (editor’s notes: this discusses permanent resident spouses of citizens working abroad essentially for the government);

Subsection 3(1)(e) provides that:

(3) Subsection (1) does not apply to a person born outside Canada

(e) the person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act

Subsection 3(1)(g) provides that:

3. (1) Subject to this Act, a person is a citizen if

(g) the person was born outside Canada before February 15, 1977 to a parent who was a citizen at the time of the birth and the person did not, before the coming into force of this paragraph, become a citizen;

Subsection 3(1)(h) provides that:

3. (1) Subject to this Act, a person is a citizen if

(h) the person was granted citizenship under section 5, as it read before the coming into force of this paragraph, the person would have, but for that grant, been a citizen under paragraph (g) and, if it was required, he or she took the oath of citizenship;

Finally, regarding subsections 3(1)(g) and 3(1)(h), subsection 3(7)(e) provides that:

(7) Despite any provision of this Act or any Act respecting naturalization or citizenship that was in force in Canada at any time before the day on which this subsection comes into force

(e) a person referred to in paragraph (1)(g) or (h) is deemed to be a citizen from the time that he or she was born;

An Example

If all of that legislation seems confusing, then consider the following (slightly modified) scenario that was recently before the court in Rabin v. Canada (Citizenship and Immigration), 2010 FC 1094.

Abe Simpson was born in Belgium in 1938. In 1957, he became a naturalized Canadian citizen.  In 1960, he married Mona Olsen, an American. They moved to the United States. In 1963, Homer Simpson was born.  In 1973, Abe Simpson gave up his Canadian citizenship by becoming a citizen of the United States. (Dual Citizenship was prohibited in Canada from 1949-1977).

Marge Bouvier was born in Belgium in 1956.

In 1981, Marge Bouvier and Homer Simpson wed in Springfield, USA.

In 1983, Bart Simpson was born.

In 2010, both Homer Simpson and Bart Simpson applied for proof of their Canadian citizenship.

What do you think happened?

Homer Simpson is a citizen by virtue of s. 3(1)(g) of the Act.  He was born outside of Canada before 1977.  Even though his father, Abe Simpson, was born in Belgium, Canadian law deems Abe to be a citizen at the time of birth because of s. 3(7)(e) of the Act.

Bart Simpson, however, is not a citizen. This is because s. 3(3)(a) specifically provides that an individual is not a Canadian if their sole Canadian parent relied on s. 3(1)(g) to become a Canadian.


The implication of the 2009 amendment to the Act can be devastating for unsuspecting Canadians abroad. Those who are considering having children abroad should seek advice to understand the citizenship implications of doing so.

Comparing the US and Canada Citizenship Forms

In order to apply for either US or Canadian citizenship, the applicant must complete an application form. The Canadian form, which can be found here, is a relatively straight forward four pages.  It asks for the generic personal information found on most forms. It also asks for a comprehensive list of all places lived and worked at during the four years preceding the application.

Section 7 of the Form contains questions regarding statements which, if answered “Yes” could result in a prohibition under the Citizenship Act.  Amongst other things, these include whether in the past four years the applicant has been incarcerated, on probation, or on parole, whether the applicant in the last three years has been convicted of an indictable offense, whether the applicant has been subject to a removal order, and whether the applicant is or has ever been investigated for or convicted for being a war criminal.

The US form, which can be found here, and is a whopping 10 pages, contains many more Section 7 type questions.  To a Canadian immigration consultant or lawyer unfamiliar with US immigration procedures, some of these questions can appear rather curious, and include, amongst others:

  • Have you ever voted in any Federal, State, or local election in the United States?
  • Since becoming a lawful permanent resident, have you ever failed to file a required Federal, State, or local tax return?
  • Do you have any title of nobility in any foreign country?
  • Have you ever been declared legally incompetent or confined to a mental institution?
  • Have you ever been a member of or in any way associated with the Community Party, any other totalitarian party, or a terrorist organization?
  • Have you ever advocated the overthrow of any government by force or violence?
  • Between March 23, 1933, and May 8, 1945, did you work for or associate in any way with the Nazi government of Germany?
  • Have you ever failed to file a Federal, State, or local tax return because you considered yourself to be a “nonresident”?
  • Have you ever been a habitual drunkard?
  • Have you ever been a prostitute, or procured anyone for prostitution?
  • Have you ever been married to more than one person at a time?
  • Have you ever helped anyone entered or try to enter the United States illegally?
  • Have you ever gambled illegally or received income from illegal gambling?
  • If the law requires it, are you willing to bear arms on behalf of the United States?
  • If the law requires it, are you willing to perform noncombatant services in the U.S. Armed Forces?

So what do you think? Should any of these questions be introduced to the Canadian application form?

Bill C-37, the Strengthening the Value of Canadian Citizenship Act

On June 10, the Conservative government introduced Bill C-37, also known as the Strengthening the Value of Canadian Citizenship Act (“Bill C-37“).

The legislation will result in five changes if passed. These are:

  1. Regulate Citizenship Consultants
  2. Increases Penalties for Citizenship Fraud
  3. Strengthen Rules For Residence Requirement
  4. Expand Ban on Criminals Becoming Citizens
  5. Crown Exception to First Generation Limit
  6. Streamlining the Revocation Process

1) Regulate Citizenship Consultants

Citizenship consultants are not currently regulated or licensed.  Bill C-37 will change this.  The amendments will introduce a new s. 21.1 of the Citizenship Act, which will state:

21.1 (1) Every person commits an offense who knowingly represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act.

The offense will be a hybrid offense. If the Crown elects to proceed by way of indictment, the maximum penalty would be a fine of $50,000 and/or two years imprisonment.

There will be exceptions for lawyers, members of a designated body, and other exceptions similar to those for immigration consultants. In fact, the language in Bill C-37 regarding the regulation of citizenship consultants largely mirrors that in Bill C-35, the Cracking Down on Crooked Consultants Act.

2) Increases Penalties for Citizenship Fraud

The Citizenship Act makes it an offense to make a false representation, commit fraud, knowingly conceal or misrepresent information, obtain or use a certificate of naturalization/renunciation of another person, knowingly permit another to use that person’s certificate, or traffic certificates. The penalty for doing so is currently a maximum fine of $1,000 and/or imprisonment to a term of one year.  A person who issues or alters a certificate, counterfeits a certificate, or attempts to cause a person to use an unlawfully issued certificate can face a penalty of a maximum of $5,000 and/or three years imprisonment.

Bill C-37 massively increases the penalties.  The offense for pretty much the same actions will now be a hybrid offense. If the Crown decides to proceed by way of a summary offense, then the maximum penalty will be a fine not more than $50,000 and/or two years imprisonment. If the Crown decides to proceed by way of an indictment, then the maximum penalty is a fine of not more than $100,000 and/or imprisonment of five years.

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